The Honorable Timothy J. Mahoney, Chief Judge, United States Bankruptcy Court for 1 the District of Nebraska. 

## United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT

No. 97-6073 NE

In re: *
* William M. Barger and Randee L. Barger *
* Debtors. *

* William M. Barger and Randee L. Barger * Appeal from the United States
* Bankruptcy Court for the

Appellants * District of Nebraska
*

v. *
* Hayes County Non-Stock Co-op, *
* Appellee. *

Submitted: February 12, 1998 Filed: April 3, 1998

Be fore WILLIAM A. HILL, SCHERMER and SCOTT, Bankruptcy Judges SCHERMER, Bankruptcy Judge:
William

and Randee Barger, Chapter 12 Debtors, filed a Mo tion to Alter or Amend Judgment, seeking reconsideration of the bankruptcy court’ s order denying confirmation of Debtors’ 12

First Amended Chapter 12 Plan. The bankruptcy court denie d Debtors’ Motion3

to Alter or Amend. Debtors then filed a Motion to Vacate the order denying their Motion to Alter or Amend. From th e bankru ptcycourt’s denial of the Motion to Vacate, Debtor s filed this appeal. On appeal, Deb tors seek review of not only the order denying Debtors’ Motion to Vacate, but also th e
su bstance underlying the order denying confirmation of their Chapter 12 plan.

Because we hold that Debtors’ Motion to Vacate did no t toll the time for appeal of the underlying order denyin g confir mation, the only issue on appeal is whether th e ban kruptcycourt abused its discretion in denying Debtors ’ Motionto Alter and Debtors’ Motion to Vacate. With respec t to the trial court’s denial of both of these motions, we hold that the trial court did not abuse its discretion. Thus, w e affirm the decisions of the bankruptcy court.

I. FACTUAL AND PROCEDURAL HISTORY

Debtors operate a farm in Hitchcock County, Nebraska an d sought relief under Chapter 12 of Title 11 of the United State s Ba nkruptcy Code on October 23, 1995. Debtors became indebted to the appellee, Hayes County Non- Stock Co-op (“the Co-op”) on
an open account for services performed or farm related good s soldprior to the filing. To secure these obligations, Debtor s granted the Co-op a security inter est in certain farm products and cr ops, including specifically the Debtors’ 1994 corn an d pinto bean crop grown on property in Hitchcock County.

Over the next two years, Debtors filed four Chapter 1 2 plan s in which they treated the Co-op as holding either a n
uns ecured or minimally secured claim. In each instance, th e Co-op filed objections to the modified and amended plans , disp uting treatment of the Co-op’s claim on the basis tha t Debtors allegedly sold their 1994 corn and pinto bean crop out

-4

of-state, without recognizing the Co-op’s security interest in the crop proceeds.The sequence and descriptions of reorganization plans is somewhat confusing. 2 Debtors’ first plan, in this case, was filed on November 8, 1995 and denominated Debtors’ Reorganization Plan. Debtors amended this plan by their First Modification to Chapter 12 Reorganization Plan on March 15, 1996, and by a Second Modification to Chapter 12 Reorganization Plan on August 15, 1996. On March 17, 1997, Debtors filed their fourth plan, which is the one at issue in the motions on appeal. That plan was denominated the First Amended Chapter 12 Reorganization Plan. These Debtors are not strangers to Judge Mahoney nor the bankruptcy court in 3 Nebraska. Debtors have been under the protections of Title 11 almost continuously since May, 1986 when they filed their first reorganization under Chapter 11. After a finding in April 1990, that their Chapter 11 plan was not feasible, the court dismissed the Chapter 11 case. One month later, Debtors filed a Chapter 12 petition. Five years after operating under the protections of Chapter 12, and after incurring post-petition deficits, the Debtors moved for dismissal of their Chapter 12 case. One month after that dismissal, Debtors filed this Chapter 12 petition.
5 On March 17, 1997, Debtors filed their fourt h reorganization plan, denominated a s the Debtors’ First Amended Chapter 12 Reorganization Plan (the “Plan”). \ The Co-o p 2 again objected to confirmation, asserting that the Debtors ’ his tory in two prior reorganization cases, together with the 3 Debtors’ alleged conversion of the proceeds of the Co-op’s 199 4 crop, demonstrated that the Plan was neither feasible no r propos ed in good faith. On April 16, 1997, the court held a he aring on confirmation of the Plan and took the matter under advisement. On June 5, 1997, the court entered an order (date d June 4 , 1997) denying confirmation. It is from denial o f confirmationof this Plan and from denial of subsequent motion s to reconsider this order that Debtors appeal.

In its order of June 4, 1997, the court found that Mr

. Barger converted the Co-op’s collateral and that the Pla n treatment afforded the Co-op’s claim was not made in goo d fait h. The Plan proposed to treat the Co-op’s claim a s follows: first, Debtors proposed to set off any balance found due the Co-op against any judgment Debtors obtained against th e Co-op in an adversary proceeding which Debtors filed seekin g6

damages for negligent application of herbicide. If, after se t off, the Co-op’s claim exceeded $5 ,000.00, Debtors proposed to satisf ythe Co-op’s claim by paying $5,000.00 with 8.25 % interest, payable in three equal m onthly installments. If the claim proved to be less than $5,000.00, Debtors proposed to pa y the fu ll amount of the claim with interest over such tim e period. The court found this7

treatment lacked good faith becaus e, as the court explained in it s June 4, 1997, order, “[r]ather than attempting to mak e
amen ds [for conversion of collateral], [the Debtors] no w pr opose to pay at most a mere 1/7th of the claim of this once fully secured creditor, and . . . only if [the Debtors] are no t entirely succ essful in [their] lawsuit against the Co-op.” Inaddition, based upon the Debtors’ projected cash flow, the court found that if the Debtors were ultimately unsuccessfu l in their lawsuit against the Co-op and had to classify and pay the Co -op’s claim as if it were fully secured, the Plan’ s feasibility would be in question.

Debtors’ First Motion to Reconside r - Motion to Alter or Amend Judgment
On June 12, 1997, and within ten days of the June 4, 199 7, order denying confirmation, Debtor s filed a Motion to Alter or Am end Judgment (“Motion to Alter”) to obtain reconsideratio n of the order denying confirmation. As the basis fo r
re consideration, Debtors brought to the court’s attention the fact that between the confirmation hearing and the confirmatio n order, the court disallowed the Co -op’s claim in its entirety. Thus, Debtors argued that the Co-op had no claim which coul d provide grounds for objection to confirmation. As furthe r grounds for reconsideration, (although inconsistent with th e position that the Co-op did not ha ve a valid claim against the estate), the Debtors asserted that the Co-op held a “last lien position on the 1994 corn and beans” and that the Plan’ s proposal to pay the Co-op $5,000.0 0 was more than the creditor
wou ld have received outside of bankruptcy or as an unsecure d creditor. Thus, Debtors asserted the Plan was proposed in goo d faith.
In an order dated July 1 , 1997, the Court denied Debtors’ Moti onto Alter. In that July 1, 1997, order, the cour t8

rejectedDebtors’ assertion that the court erred in considerin g the Co -op’s claim at confirmation, remarking that the cour t tried t he secured status of the Co-op’s claim at th e conf irmationhearing, and at no time during trial, did th e De btors make known to the court that they had objected to the claim nor that the court had previouslyProcedurally, we observe that the Co-op filed its proof of claim very early in this case 4 (December 4, 1995), and that Debtors filed their claim objection on March 5, 1997, just before filing their fourth proposed plan. The Notice of Objection Deadline provided that responses to the objection were due on March 31, 1997, and that if no objections or resistence were filed, the court would consider entering an order sustaining the objection. The Co-op did not file a written response to the objection, and thus, while the parties litigated confirmation, Debtors tendered a proposed order, which, when entered on April 30, 1997, sustained Debtors’ objection and disallowed the claim. Although at the time of the confirmation hearing on April 16, 1997, the court had not yet, in fact, entered the order sustaining the claim objection and despite the statement of the sequence of events in the order denying Debtors’ Motion to Alter, it is apparent that the court found Debtors’ challenge to the validity of the Co-op’s claim in the Motion to Alter to be inappropriate since the court believed the parties had just litigated the claim at confirmation.

9 en tered an order sustaining an objection to the Co-op’s claim for failure of the Co-op to respond. 4
Additionally, in its order denying the Motion to Alter , the court stated that it could reconsider any prior orde r di sallowing the Co-op’s claim and did so in the July 1, 1997, order because the parties had actually litigated the clai m du ring the confirmation process. Lastly, the court held that Debtors’ Motion to Alter or Amend (and the Affidavit i n suppo rt) presented no new evidence to cause the court t o reconsider its prior conclusion th at Debtors’ Plan lacked good faith.

Debtors’ Second Motion to Reconsider - Motion to Vacate
On July 9, 1997, and wit hin ten days of the July 1, 1997, order denying the Motion to Alter, Debtors filed a Motion t o Vacate Order, requesting that the court set aside its order of July 1, 1997, and conduct a hearing on the Motion to Alter

. In s upport of their Motion to Vacate, Debtors asserted th e following points as error: (1) that the court improperly reinstated the Co-op’ s pre viouslydisallowed claim by taking such action on its ow n10

initia tive and without notice and opportunity for hearing i n violation of Bankruptcy Rule 3008; (2) that the court incor rectly concluded that the Debtors
con cealed the existence of the claim objection and the orde r sustaining the objection; and11

(3) that the court improperly concluded that the Debtor s andthe Co-op litigated the secured status of the Co-op’s clai m du ring the trial on good faith issues and plan feasibility at the confirmation hearing.

Ina one line order, entered August 13, 1997, the cour t overruled the Debtors’ Motion to Vacate. Debtors filed their Notice of Appeal on August 21, 199 7, and stated that they were appeal ing “from the Order to Vacate Order overruling th e debtors ’ Motion to Alter or Amend.” In their briefs and a t argume nt, however, Debtors are seeking to have this cour t review the merits of the June 4, 1997, order denyin g confirmation.

II. ISSUE ON APPEAL

The issue in this appeal is procedural, and raises th e qu estion whether Debtors’ Motion to Vacate effectively stayed the period for appeal of the order denying confirmation so tha t the co urt should consider the merits of the June 4, 1997 , order, o r whether the Motion to Vacate preserved for appea l onlythe question of the appropriateness of denial of th e Motio nto Alter. This case illustrates that a motion t o vacate, whether treated as a Rule 60(b) or a Rule 59(e) motion , ev en though filed within ten days of an order denying a prior
mo tion to alter or amend, preserves for appeal, at most, only the orders denying the motions to alter or vacate. It does no t pre serve for review the merits of the underlying order whic h was challenged in the first motion.

III. STANDARD OF REVIEW

Onappeal, we review the bankruptcy court’s findings o f fact for clear error and its concl usions of law de novo. Fed. R. Bankr. P. 8013; In re Usery , 123 F.3d 1089, 1093 (8th Cir.12

1997); O ’Neal v. Southwest Mo. Bank ( In re Broadview Lumbe r Co. ), 118 F.3d 1246, 1250 (8th Cir . 1997) (citing First Nat’l Bank v. Pontow , 111 F.3d 604, 609 (8th Cir.1997)). “A finding is ‘cl early erroneous’ when although there is evidence t o support it, the reviewing court, on the entire evidence is lef t wi th the definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City , 470 U.S. 564 , 573 (1985) (quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948)). We review the13

ba nkruptcy court’s grant or denial of a Rule 59(e) motion to alter or amend a judgment for abus e of discretion. Perkins v. U S West Communications , No. 97-29 59, 1998 WL 91424 at *3 (8th Cir. Mar . 5, 1998). See Twin City Const. v. Turtle Mountai n Band of Chippewa Indians , 911 F.2d 137, 139 (8th Cir.1990)

. Similarly, Rule 60(b) motions are within the discretion of the trial c ourt, and we will reverse the denial of a Rule 60(b )
mo tion only when the court has clearly abused its discretion. Pe terson v. General Motors Corp. , 904 F.2d 436, 440 (8th Cir. 1990); B axter Int’l Inc. v. Morris , 11 F.3d 90, 92 (8th Cir

. 1993). An abuse of discretion will only be found if the lowe r court's judgment was based on clearly erroneous factua l findings or erroneous legal conclu sions. Mathenia v. Delo , 99 F.3d 1476, 1480 (8th Cir.1996), cert. denied, 477 U.S. 90 9 (1997).

IV. DISCUSSION
Bankruptcy Rule 8002(a) of the Federal Rules of Bankrupt cy Procedure requires that a notice of appeal must be filed withi n te ndays of entry of the judgment, order or decree appeale d from. Bankruptcy Rule 8002(b), ho wever, provides that certain motions, if timely filed, will toll the time for appeal so tha t the tim e for appeal will begin running from the entry of a n order disposing of such motions. Specifically, Rule 8002(b ) provides that the timely filing of one of the following motion s will t oll the time for appeal: (1) a motion to amend or mak e addition al findings of fact under Rule 7052, whether or no t gr anting the motion would alter the judgment; (2) a motion to al ter or amend the judgment under Rule 9023; (3) a motion for
a new trial under Rule 9023; and (4) a motion for relief from the ope ration of a judgment or order under Rule 9024 if th e motio nis filed no later than ten days after the entry o f judgment

. Bankruptcy Rule 7052 incorporates Rule 52 of th e Federal Rules of Civil Procedure and permits the court to amen d14

its fi ndings of fact on motion of a party in interest mad e within ten days of entry of an order. Bankruptcy Rule 902 3 inc orporates Rule 59 of the Federal Rules of Civil Procedur e which permits new trials either on motion of a party mad e wi thinten days of entry of a judgment, see Fed. R. Civ. P

. 59(a), or on the court’s initiative within such ten day period , see Fed. R. Civ. P. 59(d). Additionally, and perhaps mos t frequently employed, Rule 59(e) pe rmits the court to entertain motions to alter or amend a judgment if made within ten day s of entry of the judgment.15

BankruptcyRule 9024, adopts Rule 60 from the Federa l Rules of Civil Procedure. Rule 60(b), which is relevant t o th is appeal, authorizes the court to grant relief because of: (1 ) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not hav e been d iscovered in time to move for a new trial under Rul e 59(b); (3) fraud, misrepresentation or misconduct of an advers e party; (4) entry of a void judgmen t; (5) release, satisfaction
or discharge of the judgment; or (6) any other reaso n justifying relief from the judgmen t. A Rule 60(b) motion must be made within a reasonable time and does not affect th e finalityof the judgment or suspend its operation. See Fed

. R. C iv. P. 60(b); see also Assoc. for Retarded Citizens v

. Sinn er , 942 F.2d 1235, 1239 (8th Cir. 1991) (“Although th e filing of a Rule 60 (b) motion for relief from a final orde r does not extend a party’s time to appeal the underlying order, the denial of Rule 60(b) relief is appealable.”).

We f irst address the Motion to Vacate. Because Debtor s neglected to identify under which rule they were proceeding in their Motion to Vacate, they left “the characterization of the
mo tionto the court’s somewhat unenlightened guess.” Sander s
v. Cle mco Indus. , 862 F.2d 161, 168 (8th Cir. 1988). When a mo ving party fails to specify the rule under which it makes a post-judgment motion, the characterization is left to the cour t withthe risk that the moving party may lose the opportunit y to prese nt the merits underlying the motion to an appellat e
cour t. Sanders , 862 F.2d at 168 (8th Cir. 1988). Typically , such m otions have been characterized as motions under eithe r Fed. R . Civ. P. 59 or 60, with the precise categorizatio n depen ding to some extent on the substance of the motion

. Spinar v. South Dakota Bd. of Regents , 796 F.2d 1060, 1062 (8t h Ci r. 1986). In other instances, courts have considered “‘any motionthat draws into question the correctness of the judgmen t [as] f unctionally a motion under Rule 59(e), whatever it s16

la bel.’” Norman v. Arkansas Dept. of Educ. , 79 F.3d 748, 750 (8 th Cir. 1996) (quoting 9 J. Moore, Moore’s Federal Practice ¶ 2 04.12[1] at 4-82 (2d ed. 1995)) cited in Quartana v

. Utterback , 789 F.2d 1297, 1300 (8th Cir. 1986). Courts hav e genera llyviewed any motion which seeks a substantive chang e ina judgment as a Rule 59(e) motion if it is made within ten days of the entry of the judgment challenged. Omaha India n Tribe v. Tract I--Blackbird Bend A rea , 933 F.2d 1462, 1467 n.3 (8 th Cir. 1991) (citing 6A J. Moore, Moore’s Federal Practice ¶ 59.12[1] (2d ed. 1989)).17

Co nversely, if a motion is filed more than ten days after the judgmen t, it is treated as a Rule 60(b) motion. See Baxte r Int’l. Inc. v. Morris , 11 F.3d 90, 92 (8th Cir. 1993) (holdin g that m otion denominated as “Motion to Reconsider” would b e treated as Rule 60(b) motion where it was filed more than 1 0 days after entry of the judgment).

Inthis case, it does not matter whether we consider the Debtors’ Motion to Vacate under Rule 59(e) or Rule 60(b) fo r purposes of reviewing the denial of confirmation because, unde r either construction, the motion do es not preserve jurisdiction for our review of that order. Because the parties have treate d the mo tion as directed to both the Motion to Alter and th e
or der denying confirmation, we will consider the motion as it applies to both of these orders. As directed to the Motion to Al ter, our characterization of the motion under Rule 59(e) or Rule 60(b) affects whether we review only the propriety o f denial o f the Motion to Vacate or whether we also review th e court’s denial of the Motion to Alter.
First, we consider the Motion to Vacate as directed to t he order denying confirmation. If we consider the motion to b e
a Rule 59(e) motion challenging the confirmation order, th e
mo tionwas filed more than ten days after entry of th e confirmation order and thus, was untimely.

As a Rule 60(b) motion directed to setting aside th e
co nfirmation order, the Motion to Vacate did not stay or toll the finality of that order denying confirmation, and thus, thi s appeal , if deemed from the order denying confirmation, i s untimely. Sanders , 862 F.2d at 169 (8th Cir. 1988). Moreover, as an appeal from denial of a Rule 60(b) motion, thi s appe al does raise the underlying judgment for review. A n ap peal from denial of a Rule 60(b) motion only presents th e app ellate court with the question of whether the trial cour t18

abused its discretion in ruling on the motion. Sanders , 86 2 F. 2d at 169; Browder v. Dir. Dep’t of Corrections , 434 U.S

. 257, 263 n.7 (1978). Thus, by construing the Motion to Vacat e
as a Rule 60(b) motion directed to the confirmation order, we do not squarely consider the merits of that underlying order. We only ask whether the court abus ed its discretion in denying the Mo tion to Vacate. Brooks v. Ferguson-Florissant Sch

. Dist. , 113 F.3d 903, 904 (8th Cir. 1997). In deciding whether the c ourt abused its discretion in denying the Motion t o Va cate, we are guided by the principle that Rule 60(b) relief provides “extraordinary relief” which19

should be granted only upon an ade quate showing of exceptional ci rcumstances. Baxter Int’l. Inc. v. Morris , 11 F.3d at 9 2 (8th Cir. 1993). See Rosebud Sioux Tribe v. A & P Steel, Inc. , 733 F.2d 509, 515 (8th Cir.) (motions under Rule 60(b) ar e viewed with di sfavor), cert. denied , 469 U.S. 1072 (1984). Beca use the Debtors presented no new evidence or new lega l argume nts in their Motion to Vacate, but instead, reiterate d the subs tance of their objections asserted in the Motion t o Al ter, we find that the court did not abuse its discretion in denying the Motion to Vacate. Whe re a motion to vacate raises
on ly issues of law that previously were rejected by the trial
co urt, the court cannot be said to have abused its discretion in subse quently denying relief on the motion. Sanders , 86 2 F.2d at 170 (8th Cir. 1988) (citing Fox v. Brewer , 620 F.2 d 177, 180 (8th Cir. 1980) (the failure to present reasons no t previo uslyconsidered by the court “alone is a controllin g factor against granting relief”)).

Debtors asserted at oral argument that their Motion t o Vacate did raise a new legal argument in that the Motion t o Vacate, for the first time, included a challenge to the Court’ s
sua sponte reconsideration and all owance of the Co-op’s claim. In th e Motion to Vacate, Debtors asserted that the cour t im properly reconsidered and allowed the Co-op’s claim as part of its order denying the Motion to Alter and that suc h reconsiderationrequired hearing and notice under Bankruptc y Rule 3008.

The Debtors’ legal conclusion concerning the exclusiv e pr ocedure for reconsideration of claims in this instance, and th e assertion that the Motion to Vacate raised, for the first time, the propriety of reconsidering the Co-op’s claim ar e incorr ect. Debtors’ Motion to Alter raised these questions , and, in fact, asked the court to disregard the Co-op’s clai m wh ich, at the time of hearing on confirmation, was an allowed20

cl aim. When ruling on the Motion to Alter, the court soundly rejected the assertion that the claim should neither be re

ins tated nor considered for confirmation because the cour t fo und that the parties had actually tried the validity of the claim at confirmation.
Additionally, in the Mot ion to Alter, the court correctly concl uded that bankruptcy rules authorize the court t o reconsider the allowance or disallowance of a claim. While no t
re citing the rule relied upon, it is clear that unde r Ban kruptcyRule 9024 and Rule 60(a) the court may reconside r its own orders, and any errors the rein, arising from oversight
or21

omission. Here, it is apparent that the bankruptcy cour t believ ed its order disallowing the Co-op’s claim was entere d in err or because the parties actually litigated the validit y of the claim at confirmation. Conversely, the claim objection was sustained, not after determina tion on the merits, but only because the Co-op failed to respond. Thus, we do not find tha t the ba nkruptcy court abused its discretion in denying th e Motion to Vacate.

Next, we consider the Motion to Vacate as if directed to the order denying the Motion to Al ter. If we characterize the motion a s a Rule 60(b) motion, we again may only ask whethe r th e bankruptcy court based its denial of the Motion to Vacate
on c learly erroneous factual findings or erroneous lega l
con clusions. Because, as stated above, the Motion to Vacat e didnot raise new factual matters or legal arguments, as a Rul e 60(b) mo tion, we again hold that the court did not abuse it s discre tionin refusing to vacate its order denying Debtors ’ Motion to Alter.
Alternatively, because Debtors’ Motion to Vacate was fil ed within 1 0 days of the entry of the court’s order denying th e Motionto Alter, we may consider the Motion to Vacate as a Rul e 59(e) m otion. An appeal from an order denying a Rule 59(e ) motionbrings up for review all non-moot orders rendered by th e trial court. Kunik v. Racine , 106 F.3d 168,173 (7th Cir

. 1997); see In re Grabill Corp. , 983 F.2d 773, 775 (7th Cir

. 1993). Cf

. Sanders , 862 F.2d at 169 (appeal from denial o f motion under Rule 60(b) does not r aise the underlying judgment for review). The Supreme Court explained the effect of Rul e 59 and Rule 60 post-judgment motions on appeals in Stone v

. INS , 514 U.S. 386, 402-03 (1995), stating: The majority o f post-trial motions, such as Rule 59, rend er the underlying judgment nonfinal both whe n fi led before an appeal is taken (thus tolling th e22

time for takin g an appeal), and when filed after the notice of appe al (thus divesting the appellate court of jurisdiction). Other motions, such as Rul e 60(b) mo tions filed more than 10 days after judgment, d o not affect the finality of a district court' s judgm ent, either when filed before the appeal (n o tolling), or afterwards (appellate court juris diction no t divested). Motions that do toll the time fo r taking appeal give rise to only one appeal in whic h all matters are reviewed; motions that do not tol l the tim e for taking an appeal give rise to tw o separate appellate proceedings that can b e consolidated.23

quoted in Kunik v. Racine , 106 F.3d at 172 (7th Cir. 1997 ) (emphasis added).
By tr eating Debtors’ Motion to Vacate as a Rule 59(e ) motion, appeal from its denial raises the merits of the court’ s denial of Debtors’ prior Motion to Alter. Because we revie w th e denial of the both 59(e) and Rule 60(b) motions under the abuse o f discretion standard, Perkins v. U. S. Wes t Communications , No. 97-2959, 1998 WL 91424 at *3 (8th Cir. Mar

. 5, 1998), we again find nothing to suggest that the court erre d indenying the Motion to Vacate or the Motion to Alter. With respec t to the Motion to Alter, the Court’s order of Jul y 1,1997 , indicates that the court carefully addressed each o f th e asserted points of error raised by Debtors. Only afte r review ing the points raised by Debtors in light of it s fa miliarity with the proceedings, the testimony at trial, and th e court’s impression of the credibility of the witness, did the bank ruptcy court deny the Motion to Alter. There i s nothin g in the record, particularly without review of th e transc ript of the hearing on confirmation, to convince thi s court that the bankruptcy court abused its discretion i n denying Debtors’ Motion to Alter.

Bytreating the Motion to Vacate as a Rule 59(e) motion,
we reject the Co-op’s assertion that this court does not have jurisdictionto consider the merits of any order other than th e Mo tionto Vacate. The Co-op made this argument because th e notice of appeal identified only the Motion to Vacate as th e order from which appeal was taken. As a Rule 59(e) motion , appeal from the Motion to Vacate p roperly raised the merits of denial of the Motion to Alter. Moreover, both partie s addressed the merits of the Motion to Alter in their briefs , and we hold that allowing consider ation of the Motion to Alter is con sistent with the more lenient approach to appeal s requiredby the Supreme Court in Forman v. Davis , 371 U.S. 178 ,24

18 1 (1962) where the Court allowed an appeal of a dismissa l order ev en though the notice of appeal identified the orde r denying a Rule 59(e) motion as the order from which appeal was take n. The Court explained: “It is too late in the day an d
en tirely contrary to the spirit of the Federal Rules of Civil Proc edure for decisions on the merits to be avoided on th e basis of such mere technicalities.” Id. at 181.
Despite this standard, however we reiterate that we cann ot reach the merits of denial of confirmation. Had Debtors timel y appealed from denial of their Motion to Alter rather tha n substitutingthe Motion to Vacate for an appeal, the underlyin g issue of confirmation25

co uld have been preserved for this court. See Sanders , 86 2 F.2d at 169 (stating “district cou rt was not required to grant relief u nder Rule 60(b) as a substitute for . . . exercisin g [the ] right to appeal the alleged error”). Debtors eithe r mistakenly believed their Motion t o Vacate would toll the time for appe al of the adverse decision at confirmation, or the y attemptedto substitute their Motion to Vacate for an immediat e appeal. In either case, the use of multiple motions t o
recons ider caused Debtors to lose their right for appellat e review on the merits of the order denying confirmation.
For the forgoing reasons , the decisions of the bankruptcy court in denying Debtors’ Motion t o Vacate and Motion to Alter are affirmed.

A true copy.

Attest:

CLER K, U.S. BANKRUPTCY APPELLATE PANEL FOR TH E EIGHTH CIRCUIT